Coltart v Fife Council (unreported)
Following the hard winter there will no doubt be a spate of
slipping/tripping claims. In the case of Coltart v Fife Council,
Sheriff Braid, sitting at Cupar, gave a very helpful summary of the
present law and outlined in some detail the sort of facts that a
Pursuer will have to set out in order to have any hope of
succeeding with a claim of this type.
On 31st January 2003, Mr Coltart slipped and fell whilst walking
along the pavement of Main Street, Ceres. It was said on his behalf
that the pavement had been covered with snow and ice for several
days and that further snow was forecast that day. The condition of
the pavement was alleged to be an obvious danger to pedestrians.
The Council, as Local Authority, were said to have a duty to keep
the roads and pathways free of snow and ice and it was suggested
that in terms of their own winter maintenance plan the pavement in
question ought to have been given the highest priority for
treatment. The action, which was brought at common law, was
described by the Sheriff as essentially criticising the Local
Authority for not having reacted quickly enough.
Fife Council suggested Mr Coltart's case was not detailed enough
to go to Proof. Sheriff Braid began by confirming that there was no
dispute a Local Authority are entitled to exercise discretion in
deciding on the prioritisation to be given to the treatment of icy
roads and footpaths.
The Sheriff said that it was not enough for a Pursuer just to
say a road or footpath could have been treated. In order to have a
chance of succeeding with a claim of this type the Pursuer would
have to try and bring a case within at least one of the following
three situations:-
(1) Compare and contrast the practice of the Local Authority in
question with other Local Authorities. Set out what the practice of
other Local Authorities was in similar
circumstances and say why the authority in question ought to have
been seen as having fallen short of the norm.
(2) Put forward special or exceptional reasons why the authority
ought to have been aware that the place where the accident occurred
presented a particular danger and therefore required preferential
treatment. This could be done by reference to previous accidents or
complaints or to a feature of the location itself such as being
immediately outside an old people's home that the authority were or
ought to have been aware of.
(3) If the Local Authority in question had not followed its own
winter maintenance strategy plan. Just establishing a deviation on
its own would not be enough. You would have to go on to establish
that the authority had, on this particular occasion, given priority
to other roads and pavements which were afforded a lower ranking in
the strategy plan than the place where the accident occurred or
alternatively to set out and establish that the plan in force at
the time required locations ranked at the level of the area where
the accident occurred to be treated within a set time period and
that the authority had failed to meet its own target.
Applying the principles he had identified to Mr Coltart's case,
Sheriff Braid had no difficulty in deciding that it was irrelevant
and he dismissed it. He pointed out that no attempt had been made
to contrast what Fife Council had done here with what other
authorities might have done in the same circumstances. There was no
suggestion that Main Street, Ceres was known to be an accident
blackspot or that there was any peculiarity which made it more
dangerous than other locations in the region. Although reference
was made to the Local Authority's maintenance plan and the fact
that the location was accorded the highest priority it was not
suggested that the Council had, on this occasion, treated other
lower priority locations first or that there was a particular
timescale within which locations ranked at this priority required
to be treated.
This is the latest in a line of wintry slip/trip cases against
local authorities which have failed. These are difficult cases for
Pursuers to succeed with and we should be challenging all of those
which do not measure up.